Select Committee on Deregulation and Regulatory Reform Eighth Report


Letter from the Clerk of Delegated Legislation to the Department for Work and Pensions


1.    The Deregulation & Regulatory Reform Committee held a first discussion on Tuesday morning of the proposal for the Carer's Allowance Order, which was laid before Parliament on 17 December.

2.    You will not be surprised to learn that while the Committee had no difficulty in accepting the main thrust of the proposals taken as a whole, some concern was nevertheless expressed about the specific proposal to repeal section 70(6) of the 1992 Act, thus removing, for carers currently under the age of 65, the concession allowing entitlement to ICA to continue notwithstanding that the caring role has ceased.

3.    While the Department's Statement understandably stresses the unanimous support amongst respondents to the consultation exercise for the main proposals in the draft Order (including the transitional concession for existing over-65 carers), the summary of responses appears somewhat to underplay the extent of the concern felt about those who may be potentially disadvantaged by the repeal of section 70(6). Although it is claimed by the Department, and recognised by most respondents, that the number who might be significantly disadvantaged is small, the Committee is not convinced that that can in itself be sufficient argument for the concession to be withdrawn in the case of carers currently under 65. The case is more likely to stand or fall on the extent to which necessary protection is retained and the extent to which alternative means of state support will compensate for the withdrawal of entitlement. While the Department stress the availability of Minimum Income Guarantee as a protection for those who may fail to qualify for the full State Pension, our understanding is that those who retain entitlement to ICA currently qualify for Carer Premium which may be paid over and above the rate of the Guarantee: the possible loss of this entitlement would appear to be a significant potential loss to an albeit small group.

4.    The position is not entirely clear from the Department's Statement, but we presume that appropriate estimates must have been made before the Government arrived at their current proposals, in rather more detail than appears in paras 78-81 and the attached RIA, in order to meet the requirements of section 6(2)(h) of the 2001 Act. The Department will understand that the Committee will need to feel themselves fully informed of the facts before they are able to decide whether they share Ministers' conclusions on whether the statutory tests are met by the proposed Order as a whole. The Committee would accordingly appreciate the provision of some additional information on the following points:

  •   Please provide examples, in current cash terms, of what the effect would be of the loss of ICA - or of entitlement to ICA - on the total income of typical over-65 carers, including in particular the vulnerable groups identified by your respondents.
  •   Please indicate the current cost to the Government of meeting the existing entitlement to carers over 65 currently benefiting from the section 70(6) concession.

  •   Paragraph 79 of the Department's Statement says that there will be "very small savings over a period of time, as carers come up to 65 and are subject to disallowance if the subsequently fail to meet the conditions". Please try to quantify these savings.

5.    In respect of the proposed repeal of section 70(6), the Committee would appreciate an explanation of why the decision has been taken at this stage to repeal the whole subsection (subject to transitional arrangements), rather than merely to repeal the current Regulations (SI, 1976, No. 409) made under the subsection. Retention of the power to make further Regulations in such cases might allow active consideration to be given at a later stage to some of the less radical alternatives suggested by respondents (such as the BMA's suggestion that the concession might be applied at an age later than 65), or to re-introduce the existing Regulations if experience were to demonstrate that hardship was being caused by their repeal. Was any consideration given to retaining the section 70(6) power on the Statute Book, even if Ministers feel on current evidence that the specific arrangements may no longer be necessary?

6.    Finally, Counsel have suggested one or two relatively minor drafting points which you may wish to consider at this stage, as follows:

  •   We suggest that you may wish to expand the recitals to the draft Order, at the beginning, by including a specific reference to the removal or reduction of burdens, which is a prerequisite (in accordance with section 1(3) of the Act) of any Order made under the 2002 Act.

  •   In article 4, we suggest that the reference to "subsection (1)(a) to (c)" of section 70 of the 1992 Act may be a misprint for "subsection (1)(a) or (b)" (as in section 70(6) itself), since subsection (1)(c) appears to include a requirement which the carer cannot satisfy. Alternatively, should the references to subsection (1) be expressed in the passive voice?

I would be most grateful if you could let me know that you will be responding to this letter, and let the Committee Clerk or his Assistant have a response by close of play on Monday 5 February.

24 January 2002

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